Citation Nr: 0202407
Decision Date: 03/14/02 Archive Date: 03/25/02
DOCKET NO. 02-00 993 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Thomas E. Forte, D.O., M.S.
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran had active service from June 1943 to February
1946.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Cleveland, Ohio (RO) which denied the benefit sought on
appeal. The appellant is the veteran's widow.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. The veteran's death certificate shows that he died in
April 2000 due to respiratory failure as a consequence of
chronic obstructive pulmonary disease.
3. During the veteran's lifetime, service connection had been
established for residuals of flash burns on his arms, hands,
face, stomach, and left leg.
4. The veteran's chronic obstructive pulmonary disease was
not manifested during service or for many years thereafter,
and is not shown to be causally or etiologically related to
the veteran's service.
5. The medical evidence demonstrates that the veteran's
chronic obstructive pulmonary disease was due to the use of
tobacco.
CONCLUSION OF LAW
The requirements for service connection for the cause of the
veteran's death have not been met. 38 U.S.C.A. §§ 1103,
1310, 5103A, 5107(b) (West 1991 & Supp. 2001); 66 Fed. Reg.
45,630-32 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.102, 3.303, 3.312
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This appeal arises out of the appellant's claim that the
veteran's death from chronic obstructive pulmonary disease
was related to his active service. The appellant maintains
that the veteran started smoking while in service, that he
continued smoking following service, and that this smoking
caused the chronic obstructive pulmonary disease that caused
his death. She also contends that the veteran's service-
connected residuals of burns aggravated the veteran's chronic
obstructive pulmonary disease or, in the alternative, that
the veteran's 1995 claim for nonservice-connected pension
prevents the application of 38 U.S.C.A. § 1103.
As a preliminary matter, the Board finds that all relevant
facts have been properly and sufficiently developed and that
no further assistance to the appellant is required in order
to comply with the duty to assist as mandated by the Veterans
Claims Assistance Act. See 38 U.S.C.A. § 5103A (West Supp.
2001); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified
as amended at 38 C.F.R. § 3.159). This law sets forth
requirements for assisting a claimant in developing the facts
pertinent to his or her claim. In this regard, the Board
notes that VA fulfilled its duty to assist the appellant by
obtaining and fully developing all relevant evidence
necessary for an equitable disposition of the issue on
appeal. The veteran's service medical records and relevant
treatment records have been obtained. The statement of the
case provided to the appellant, as well as additional
correspondence to the appellant, informed her and her
representative of the pertinent laws and regulations and the
evidence necessary to substantiate her claim. As such, the
Board finds that the duty to assist was satisfied and the
case is ready for appellate review. See Bernard v. Brown, 4
Vet. App. 384, 392-394 (1993). See also VA O.G.C. Prec. Op.
No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747)
(1992).
According to VA law and regulations, service connection may
be granted for disabilities resulting from a disease or
injury incurred or aggravated during active service. See
38 U.S.C.A. § 1110 (West 1999); 38 C.F.R. § 3.303 (2001).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. See 38 U.S.C.A. § 1310;
38 C.F.R. § 3.312(a). For a service-connected disability to
be considered the primary cause of death, it must singly, or
with some other condition, be the immediate or underlying
cause, or be etiologically related thereto. See 38 C.F.R.
§ 3.312(b). In determining whether a service-connected
disability contributed to death, it must be shown that it
contributed substantially or materially, that it combined to
cause death, or that it aided or lent assistance to the
production of death. See 38 C.F.R. § 3.312(c)(1). Medical
evidence is required to establish a causal connection between
service or a disability of service origin and the veteran's
death. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993).
Nevertheless, for claims filed after June 10, 1998, a
veteran's death is not considered to have resulted from
injury incurred or disease contracted during active service
on the basis that it resulted from the veteran's use of
tobacco products in service. See 38 U.S.C.A. § 1103.
The veteran had active military service from June 1943 to
February 1946. According to the veteran's death certificate,
he died in April 2000 as a consequence of respiratory failure
due to chronic obstructive pulmonary disease. Contributing
conditions were noted as multifocal atrial tachycardia and
hypertension. During his lifetime, the veteran had
established service connection for residuals of flash burns
to the right forearm, left hand, face, left leg, and stomach.
Service medical records contain no evidence of chronic
obstructive lung disease. Service medical records dated
January 1945 show a diagnosis of multiple burns. According
to the record, the veteran received flash burns when a
crashing plane hit his ship. The veteran had second degree
burns of the right ulnar forearm and the ulnar side dorsum of
the left hand, with superficial burns and adhesions on the
abdomen and left knee. The veteran's separation examination
showed a normal respiratory system and a normal chest x-ray.
No defects were noted.
A review of the private medical evidence of record reveals
that the veteran was diagnosed with chronic obstructive
pulmonary disease. The diagnosis is first reflected in
medical evidence of pulmonary function tests performed in the
1980s. The first record showing confirmation of this
diagnosis was a February 1992 radiology report from a chest
x-ray, which showed chronic obstructive pulmonary disease
with old granulomatous disease.
A pulmonary consultation record from D. J. Dortin, Jr., D.O.,
F.C.C.P., dated June 1995, shows that the veteran had dyspnea
with exertion for many years, which had worsened over the
last five years. According to the record, the veteran was a
"60 pack year smoker" who quit in 1978. A letter from Dr.
Dortin to T. Forte, M.D., also dated June 1995, shows that
the veteran had severe obstruction to airflow with
hyperinflated lungs and noted that a computerized tomography
(CT) scan showed bilateral apical bullous disease, typical of
that seen in smokers.
Records dated November 1995, from R. K. Wolf, M.D., indicate
that the veteran underwent a right video thoracoscopy,
decortication, and volume reduction. A record dated February
2000 indicates that the veteran participated in Phase II of
the Pulmonary Rehabilitation Program at the Jewish Hospital
in Cincinnati, Ohio from July 1995 through September 1995.
In October 1996, the veteran was hospitalized with complaints
of shortness of breath. Examination of the chest was
negative for definite wheezing, but breath sounds were
decreased and there was evidence of possible forced
expiration. The chest x-ray did not show any definite acute
infiltrates. The diagnosis was an acute exacerbation of
chronic obstructive pulmonary disease.
Additional treatment records dated November 1995 through
April 1999 reflect that the veteran was treated for severe
chronic obstructive pulmonary disease, status-post right lung
reduction.
In January 2000, the veteran reported to the emergency room,
complaining of shortness of breath. A long history of
chronic obstructive pulmonary disease was noted, as was the
veteran's history of heavy smoking through the 1970s. A
chest x-ray was negative for a large infiltrate, but the
veteran had a severe emphysematous barrel chest, with
flattening of the diaphragm. The diagnosis was acute
exacerbation of chronic obstructive pulmonary disease.
In March 2000, the veteran was admitted to the hospital with
complaints of shortness of breath. A chest x-ray showed
incomplete resolution of bilateral pleural effusions and
bilateral hyperinflation and flattening of the diaphragms.
Examination of the chest revealed some scattered wheezes and
rhonchi. He was diagnosed with acute respiratory failure and
severe chronic obstructive pulmonary disease.
An April 2000 record shows that the veteran was hospitalized
with moderate respiratory distress due to persistent
shortness of breath. Chest x-rays showed a slight increase
in the left basilar disease and improvement in the left
pleural effusion. The diagnosis was an acute, severe
exacerbation of chronic obstructive pulmonary disease.
A June 2001 letter from Dr. Dortin states that he treated the
veteran for his chronic obstructive pulmonary disease. He
noted that the veteran underwent a right lung reduction
surgery in an attempt to improve his symptoms, but that the
veteran continued to have severe impairment due to his
chronic obstructive pulmonary disease. He further stated
that the veteran's severe chronic obstructive pulmonary
disease was tobacco-related.
A July 2001 letter from J. S. Kleinfelder, M.D., states that
the veteran had a long history of chronic pulmonary
obstructive disease and a long history of smoking two to
three packs per day from when he entered military service
until the mid to late 1970s. Dr. Kleinfelder opined that the
veteran's chronic obstructive pulmonary disease was
"undoubtedly [caused]" by the veteran's cigarette smoking.
He also stated that the veteran's death was due to
respiratory failure secondary to chronic obstructive
pulmonary disease.
Another July 2001 letter, from G. A. Turner, M.D., F.C.C.P.,
stated that the veteran died as a result of respiratory
failure due to chronic obstructive pulmonary disease. He
noted that pulmonary function tests and x-rays documented the
veteran's chronic obstructive lung disease. He opined that
the veteran's chronic obstructive pulmonary disease and
emphysema were related to the veteran's long history of
tobacco use.
The Board acknowledges the appellant's contention regarding
the veteran's smoking in service, and its relationship to the
disability that led to his death. However, Congress has
prohibited the grant of service connection for a disability
on the basis that such disability resulted from a disease
attributable to the use of tobacco products during the
veteran's active service for claims filed after June 10,
1998. See 38 U.S.C.A. § 1103. Therefore, as a matter of
law, any claims received by VA after June 10, 1998, are
subject to this restriction.
In the appellant's case, the record clearly shows that the
appellant's claim, asserting that the veteran's chronic
obstructive pulmonary disease was due to smoking, was not
filed until May 2000. The evidence of record clearly shows
that the veteran's respiratory failure was caused by the
veteran's chronic obstructive pulmonary disease, which was
caused by the veteran's tobacco use. The Board notes that
service medical records are entirely negative for evidence of
chronic obstructive pulmonary disease or other evidence of
respiratory problems. In addition, the veteran's chronic
obstructive pulmonary disease was first manifest many years
following service. In this regard, the earliest evidence of
record confirming the diagnosis of chronic obstructive
pulmonary disease is a radiology report from a February 1992
chest x-ray. Likewise, there is no medical evidence that
even suggests that the veteran's chronic obstructive
pulmonary disease was in any way related to the veteran's
service. See 38 U.S.C.A. §§ 1110, 1310; 38 C.F.R. §§ 3.303,
3.312. Rather, as discussed earlier, the medical evidence
reflects that the veteran's chronic obstructive pulmonary
disease was due to the veteran's 60-pack year history of
smoking.
The provisions of 38 U.S.C.A. § 1103 are dispositive of the
theory of entitlement in this case and require that the claim
be denied. In a case where the law, and not the evidence, is
dispositive, the claim should be denied or the appeal to the
Board should be terminated because of the absence of legal
merit or the lack of entitlement under the law. See Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994). As the appellant's
claim was received on May 8, 2000, well after the effective
date of 38 U.S.C.A. § 1103, the appellant's claim for service
connection of the veteran's cause of death is prohibited as a
matter of law.
Lastly, the Board also acknowledges the appellant's argument
that the veteran's previous claim for nonservice-connected
pension and for aid and attendance preceded the effective
date of 38 U.S.C.A. § 1103, and therefore her claim should be
allowed. According to the record, the veteran filed these
claims in September 1995 and these claims were adjudicated in
December 1995. Nonservice-connected pension was awarded on
the basis of the veteran's emphysema with respiratory
insufficiency. The veteran did not file an appeal.
Significantly, service connection had not been established
for any lung disease during the veteran's lifetime, and even
if the veteran had filed a claim for service connection for
emphysema, the claim would not have survived his death. As a
matter of law, veterans' claims do not survive their deaths.
See Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir.
1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997);
Landicho v. Brown, 7 Vet. App. 42, 47 (1994). Furthermore,
the appellant's current claim for service connection for
cause of death is separate and distinct from the veteran's
previous claims. Thus, the appellant's assertion that the
present claim was originally filed in September 1995 is
without merit.
ORDER
Service connection for the cause of the veteran's death is
denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.